On Point: 10. Sec. 939.32

State v. Shayd C. Mitchell, 2017AP1536-CR, District 3, 8/7/18 (not recommended for publication); case activity (including briefs)

Mitchell was stopped two blocks away from the Family Video store he was walking to for an assignation with someone he thought was a 15-year-old boy. That was close enough to get him convicted of attempted child enticement.

State v. Jesse L. Schmucker, 2014AP165-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The evidence was sufficient to sustain the jury’s finding of guilt of an attempt to violate § 942.09(2)(am)1., which criminalizes capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in circumstances where that person had a reasonable expectation of privacy, even though the victim was not nude and the offense occurred while the victim was in the check-out line at a grocery store.

State v. Wyatt D. Henning, 2013 WI App 15; case activity

The crime of attempted possession of a firearm by a felon is recognized in Wisconsin, distinguishing State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998):

¶14      Turning to the particular language of the felon in possession of a firearm statute, and the case law further explaining the elements of that crime,

State v. Rodney A. Larson, 2011 WI App 106 (recommended for publication); for Larson: Chris Gramstrup; case activity

Prosecution for attempt rather than completed crime, §939.32, comes within the general limitation period in § 939.74(1). Therefore, although prosecution for homicide may be commenced at any time, § 939.74(2)(a), Larson’s prosecution for attempted first-degree intentional homicide had to be commenced within 6 years, and must be dismissed as untimely.

State v. Dennis C. Strong, 2011 WI App 43; for Strong: Steven D. Grunder, SPD, Madison Appellate; case activity

Evidence that Strong possessed pails filled with methyl ethyl ketone (i.e., acetone, or paint thinner), with bare electrical wires running through the pails and attached to a wall outlets, held sufficient to establish guilt for possessing improvised explosive device, § 941.31(2)(b). The court rejects the arguments that the material was flammable rather than “explosive,”

State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis

Issue/Holding:

¶7 Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, “conspiracy to attempt” is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez,

State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting

Issue: Whether attempted sexual assault of a child (by intercourse), § 948.02(2), is a crime known to law, in that the offense lacks an intent element and any crime of intent, § 939.32, requires specific intent for the completed act.

Holding: Sexual contact explicitly requires “intentional touching,” and therefore supports a charge of attempted assault by contact, 

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue/Holding:

¶37. The crime of attempt is complete when the intent to commit the underlying crime is coupled with sufficient acts to demonstrate the improbability of free will desistance; the actual intervention of an extraneous factor is not a “third element” of the crime of attempt, although it is often part of the proof. 

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue: Whether attempted child enticement is a prosecutable offense, where the “child victim” was in fact a government agent posing as a child as part of a government sting operation.

Holding: That the “victim” was fictitious is the extraneous factor intervening to make the crime attempted rather than completed enticement. 

State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand

Issue/Holding: State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online “victim” is thought by the defendant to be a child,